Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Notices 57169 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket Nos. NHTSA–2019–0030 and 

NHTSA–2021–0066; Notice 2] 

Volkswagen Group of America, Inc., 

Denial of Petitions for Decision of 

Inconsequential Noncompliance 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Denial of petitions. 

SUMMARY: Volkswagen Group of 

America, Inc. (Volkswagen or the 

‘‘Petitioner’’) has determined that 

certain model year (MY) 2019 and 2021 

Audi motor vehicles do not fully 

comply with Federal Motor Vehicle 

Safety Standard (FMVSS) No. 135, Light 

Vehicle Brake Systems. Volkswagen 

filed noncompliance reports dated 

March 27, 2019, and July 26, 2021. 

Volkswagen petitioned NHTSA (the 

‘‘Agency’’) on April 17, 2019, and 

August 25, 2021, for a decision that the 

subject noncompliance is 

inconsequential as it relates to motor 

vehicle safety. This notice announces 

the denial of Volkswagen’s petitions. 

FOR FURTHER INFORMATION CONTACT: 

Vince Williams, Office of Vehicle Safety 

Compliance, National Highway Traffic 

Safety Administration (NHTSA), 

telephone (202) 366–2319. 

SUPPLEMENTARY INFORMATION: 

I. Overview 

Volkswagen has determined that 

certain MY 2019 Audi A6 and Audi A7 

and MY 2021 Audi A6 Sedan, A6 

Allroad, A7, RS6 Avant, RS7, S6 Sedan, 

and S7 motor vehicles do not comply 

with the requirements of paragraph 

S5.4.3 of FMVSS No. 135, Light Vehicle 

Brake Systems (49 CFR 571.135). 

Volkswagen filed noncompliance 

reports dated March 27, 2019, and July 

26, 2021, pursuant to 49 CFR part 573, 

Defect and Noncompliance 

Responsibility and Reports. Volkswagen 

petitioned NHTSA on April 17, 2019, 

and August 25, 2021, for an exemption 

from the notification and remedy 

requirements of 49 U.S.C. chapter 301 

on the basis that this noncompliance is 

inconsequential as it relates to motor 

vehicle safety, pursuant to 49 U.S.C. 

30118(d) and 30120(h) and 49 CFR part 

556, Exemption for Inconsequential 

Defect or Noncompliance. 

Notices of receipt of Volkswagen’s 

petitions were published on August 21, 

2019 (84 FR 43660) and June 17, 2022 

(87 FR 36574) in the Federal Register 

with a 30-day public comment period. 

No comments were received. To view 

the petitions and all supporting 

documents log onto the Federal Docket 

Management System (FDMS) website at 

https://www.regulations.gov/. Then 

follow the online search instructions to 

locate docket numbers ‘‘NHTSA–2019– 

0030’’ and ‘‘NHTSA–2021–0066.’’ 

II. Vehicles Involved 

Approximately 3,908 MY 2019 Audi 

A6 and Audi A7 vehicles, manufactured 

between July 27, 2018 and November 6, 

2018, are potentially involved. 

Additionally, approximately 4,267 

MY 2021 Audi A6 Sedan, A6 Allroad, 

A7, RS6 Avant, RS7, S6 Sedan, and S7 

vehicles, manufactured between January 

11, 2021, and April 14, 2021, are 

potentially involved. 

III. Noncompliance 

Volkswagen determined that a small 

number of the vehicles have a 

European-specification brake fluid 

reservoir cap instead of the reservoir cap 

required in S5.4.3 of FMVSS No. 135. 

The noncompliant brake fluid reservoir 

caps do not include the warning label 

required by FMVSS No. 135. 

IV. Rule Requirements 

S5.4.3 of FMVSS 135 requires that 

each vehicle equipped with hydraulic 

brakes have a brake fluid warning 

statement that reads as follows, in 

letters at least 3.2 mm (1⁄8 inch) high: 

‘‘WARNING: Clean filler cap before 

removing. Use only __ fluid from a 

sealed container.’’ (Manufacturers must 

insert the recommended type of brake 

fluid, as specified in 49 CFR 571.116, 

(e.g., ‘‘DOT 3.’’) The lettering shall be 

permanently affixed, engraved, or 

embossed, and located so it is visible by 

direct view, either on or within 100 mm 

(3.94 inches) of the brake fluid reservoir 

filler plug or cap. The color of the 

lettering must also contrast with its 

background, if it is not engraved or 

embossed. 

V. Summary of Petition 

The following views and arguments 

presented in this section, ‘‘V. Summary 

of Volkswagen’s Petition,’’ are the views 

and arguments provided by Volkswagen 

and do not reflect the views of the 

Agency. Volkswagen describes the 

subject noncompliance and contends 

that the noncompliance is 

inconsequential as it relates to motor 

vehicle safety. 

Volkswagen explains that it believes 

the subject noncompliance is 

inconsequential to motor vehicle safety 

because ‘‘the brake fluid cap clearly 

shows the specification of the brake 

fluid required’’ and ‘‘provides clear 

symbols including one for caution and 

one for referring to owner manual 

instructions.’’ Volkswagen says that the 

owner’s manual also ‘‘indicates the 

proper brake fluid specification for use 

in the vehicle.’’ Volkswagen states that 

the ‘‘brake fluid cap conforms to the 

requirements of ISO 9128:2006 which is 

a requirement of UN–ECE Regulations 

13 and 13h.’’ 

Volkswagen contends that NHTSA 

has previously granted the following 

inconsequentiality petitions, which 

Volkswagen believes are similar to the 

subject petition: 

• Jaguar Land Rover North America, 

LLC, Grant of Petition for Decision of 

Inconsequential Noncompliance, 84 FR 

13095 (April 3, 2019). 

• Ford Motor Company, Grant of 

Petition for Decision of Inconsequential 

Noncompliance, 78 FR 69931 

(November 21, 2013). 

• Hyundai Motor Company, Grant of 

Petition for Decision of Inconsequential 

Noncompliance, 73 FR 38290 (July 3, 

2008). 

According to Volkswagen, ‘‘service to 

the brake system involving an exchange 

of the brake fluid is not a standard 

maintenance activity’’ and repairs to the 

brake system ‘‘requires basic technical 

knowledge regarding the brake system 

and should be performed by a trained 

technician.’’ 

Volkswagen states that it has not 

received any field or customer 

complaints or notifications about any 

accidents or injuries related to the 

subject noncompliance. In Volkswagen’s 

petition dated April 17, 2019, 

Volkswagen states that, as of November 

7, 2018, production of the subject 

vehicles has been corrected (i.e., are 

now compliant) and the vehicles ‘‘at the 

factory have been corrected and unsold 

units will be correct prior to sale.’’ In 

Volkswagen’s petition dated August 25, 

2021, Volkswagen again states that 

production has been corrected and, as of 

April 14, 2021, the vehicles at its factory 

have been corrected and the subject 

vehicles still in its control will be 

corrected prior to sale. 

Volkswagen concludes each petition 

by stating its belief that the subject 

noncompliance is inconsequential as it 

relates to motor vehicle safety, and that 

its petitions to be exempted from 

providing notification of the 

noncompliance, as required by 49 

U.S.C. 30118, and a remedy for the 

noncompliance, as required by 49 

U.S.C. 30120, should be granted. 

VI. NHTSA’s Analysis 

In determining inconsequentiality of a 

noncompliance, NHTSA focuses on the 

safety risk to individuals who 


lotter on DSK11XQN23PROD with NOTICES1
57170 Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Notices 

1See Gen. Motors, LLC; Grant of Petition for 

Decision of Inconsequential Noncompliance, 78 FR 

35355 (June 12, 2013) (finding noncompliance had 

no effect on occupant safety because it had no effect 

on the proper operation of the occupant 

classification system and the correct deployment of 

an air bag); Osram Sylvania Prods. Inc.; Grant of 

Petition for Decision of Inconsequential 

Noncompliance, 78 FR 46000 (July 30, 2013) 

(finding occupant using noncompliant light source 

would not be exposed to significantly greater risk 

than occupant using similar compliant light 

source). 

2See Morgan 3 Wheeler Limited; Denial of 

Petition for Decision of Inconsequential 

Noncompliance, 81 FR 21663, 21666 (Apr. 12, 

2016); see also United States v. Gen. Motors Corp., 

565 F.2d 754, 759 (D.C. Cir. 1977) (finding defect 

poses an unreasonable risk when it ‘‘results in 

hazards as potentially dangerous as sudden engine 

fire, and where there is no dispute that at least some 

such hazards, in this case fires, can definitely be 

expected to occur in the future’’). 

3See Mercedes-Benz, U.S.A., L.L.C.; Denial of 

Application for Decision of Inconsequential 

Noncompliance, 66 FR 38342 (July 23, 2001) 

(rejecting argument that noncompliance was 

inconsequential because of the small number of 

vehicles affected); Aston Martin Lagonda Ltd.; 

Denial of Petition for Decision of Inconsequential 

Noncompliance, 81 FR 41370 (June 24, 2016) 

(noting that situations involving individuals 

trapped in motor vehicles—while infrequent—are 

consequential to safety); Morgan 3 Wheeler Ltd.; 

Denial of Petition for Decision of Inconsequential 

Noncompliance, 81 FR 21663, 21664 (Apr. 12, 

2016) (rejecting argument that petition should be 

granted because the vehicle was produced in very 

low numbers and likely to be operated on a limited 

basis). 

4See Gen. Motors Corp.; Ruling on Petition for 

Determination of Inconsequential Noncompliance, 

69 FR 19897, 19900 (Apr. 14, 2004); Cosco Inc.; 

Denial of Application for Decision of 

Inconsequential Noncompliance, 64 FR 29408, 

29409 (June 1, 1999). 

5See, e.g., United States v. Gen. Motors Corp., 565 

F.2d 754, 759 (D.C. Cir. 1977). 

experience the type of event against 

which a recall would otherwise 

protect.1 In general, NHTSA does not 

consider the absence of complaints or 

injuries when determining if a 

noncompliance is inconsequential to 

safety. The absence of complaints does 

not mean vehicle occupants have not 

experienced a safety issue, nor does it 

mean that there will not be safety issues 

in the future.2

Arguments that only a small number 

of vehicles or items of motor vehicle 

equipment are affected also do not 

justify granting an inconsequentiality 

petition.3 Similarly, mere assertions that 

only a small percentage of vehicles or 

items of equipment are likely to actually 

exhibit a noncompliance are 

unpersuasive. The percentage of 

potential occupants that could be 

adversely affected by a noncompliance 

is not relevant to whether the 

noncompliance poses an 

inconsequential risk to safety. Rather, 

NHTSA focuses on the consequence to 

an occupant who is exposed to the 

consequence of that noncompliance.4

The Safety Act is preventive, and 

manufacturers cannot and should not 

wait for deaths or injuries to occur in 

their vehicles before they carry out a 

recall.5 Indeed, the very purpose of a 

recall is to protect individuals from risk. 

Id. 

NHTSA has evaluated the merits of 

these inconsequentiality petitions and 

determined that Volkswagen has not 

met its burden of persuasion that the 

subject noncompliance is 

inconsequential to motor vehicle safety. 

S5.4.3 of FMVSS No. 135 requires the 

following four essential components of 

the brake fluid cap label: (1) the brake 

fluid warning statement ‘‘Warning: 

Clean filler cap before removing. Use 

only fluid from a sealed container.’’ 

(Inserting the recommended type of 

brake fluid as specified in 49 CFR 

571.116, e.g. ‘‘DOT 3’’), the lettering 

shall be (2) permanently affixed, 

engraved or embossed, (3) located so as 

to be visible by direct view, either on or 

within 100mm (3.94in) of the brake 

fluid reservoir filler plug or cap, and (4) 

of a color that contrasts with its 

background, if it is not engraved or 

embossed. Of the required components 

of the brake fluid cap reservoir labeling, 

the statements ‘‘Clean filler cap before 

removing.’’ and ‘‘Use only fluid from a 

sealed container.’’ are missing and an 

exclamation point symbol is used 

instead of the word ‘‘Warning’’. 

Volkswagen argues that the brake fluid 

cap indicates the proper fluid type and 

contains the symbols conforming to ISO 

9128:2006, which is a requirement of 

UN–ECE Regulations 13 and 13h. These 

include the aforementioned exclamation 

mark, a symbol for the brake system, 

and a third symbol apparently directing 

the viewer to consult the vehicle’s 

owner’s manual or service information. 

NHTSA notes that the symbols on the 

ISO brake fluid cap are, at best, partially 

familiar to U.S. vehicle owners and 

users and are not the equivalent of the 

printed information required by the 

safety standard. 

Furthermore, Volkswagen added that 

normal brake fluid upkeep is not 

considered a basic maintenance that a 

consumer would handle on their own 

and the servicing of the brake system 

should be performed by a trained 

technician with technical knowledge of 

the brake system. The contention that 

owners do not perform brake service 

was not supported by data and is an 

assumption that becomes increasingly 

more indefensible as a vehicle ages. 

When a consumer must check or add 

brake fluid, it is important to have the 

required warnings in place to preserve 

the performance and durability of the 

brake system. 

While prior NHTSA determinations 

that a noncompliance was 

inconsequential are not considered as 

binding precedent and the Agency 

considers each petition on its own 

merits, the prior decisions cited by the 

Petitioner have limited applicability in 

this case. One decision involved a 

placard with all the required warnings 

permanently attached to the brake fluid 

reservoir, but not to the cap itself. The 

two other decisions that the Petitioner 

cited involved a single symbol being 

substituted for a required word or 

phrase. Conversely, the Petitioner’s 

subject noncompliance involves 

multiple symbols that are missing from 

the noncompliant cap including the 

statement ‘‘Clean filler cap before 

removing’’ which is required to prevent 

unnecessary contamination from being 

introduced into the brake system when 

a customer or service technician tries to 

inspect the brake fluid, as well as the 

statement ‘‘Use only fluid from a sealed 

container’’ which is intended to prevent 

a customer or technician from adding 

the incorrect grade of brake fluid or 

contaminated fluid when adding or 

replenishing the brake fluid. Both of the 

aforementioned conditions could lead to 

a degradation of the vehicle’s brake 

system performance and present an 

unintended risk to the driver and the 

driving public. 

VII. NHTSA’s Decision 

In consideration of the foregoing, 

NHTSA finds that Volkswagen has not 

met its burden of persuasion that the 

subject FMVSS No. 135 noncompliance 

is inconsequential to motor vehicle 

safety. Accordingly, these petitions are 

hereby denied and Volkswagen is 

consequently obligated to provide 

notification of and free remedy for that 

noncompliance under 49 U.S.C. 30118 

and 30120. 

The Agency also notes that these 

petitions involve the same 

noncompliance that occurred initially in 

several months of production in 2018 

and then reoccurred again in vehicles 

produced over several months in 2021. 

Vehicle manufacturers have a legal 

obligation to ensure that their vehicles 

manufactured for the U.S. fully comply 

with applicable FMVSS and are 

required to exercise reasonable care in 

certifying their vehicles as compliant. 

49 U.S.C. 30115(a). Volkswagen should 

ensure it has improved its processes to 

prevent further reoccurrence of this 

issue. 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Notices 57171 

1The supplemental petition submitted on April 

21, 2023, was incorrectly dated as April 21, 2022. 

(Authority: 49 U.S.C. 30118, 30120; 

delegations of authority at 49 CFR 1.95 and 

501.8.) 

Otto G. Matheke, III, 

Acting Associate Administrator for 

Enforcement. 

[FR Doc. 2023–18020 Filed 8–21–23; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2022–0094; Notice 2] 

Hitachi Cable America Inc., Now 

Known as Proterial Cable America, 

Inc., and Harley-Davidson Motor 

Company, Receipt of Supplemental 

Petitions for Decision of 

Inconsequential Noncompliance 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Receipt of supplemental 

petitions. 

SUMMARY: Hitachi Cable America Inc. 

(HCA), now known as Proterial Cable 

America, Inc. (PCA), and HarleyDavidson Motor Company (HarleyDavidson) (collectively, ‘‘the 

Petitioners’’) have determined that 

certain PVC, Nylon, and ‘‘Revised 

Socket’’ Nylon brake hose assemblies 

equipped in certain model year (MY) 

2008–2022 Harley-Davidson 

motorcycles, and also sold to HarleyDavidson dealers as replacement parts, 

do not fully comply with Federal Motor 

Vehicle Safety Standard (FMVSS) No. 

106, Brake Hoses. The Petitioners filed 

the appropriate noncompliance reports 

and subsequently petitioned NHTSA 

(the ‘‘Agency’’) for a decision that the 

subject noncompliance is 

inconsequential as it relates to motor 

vehicle safety. Notice of receipt was first 

published on April 13, 2023. This 

document announces receipt of the 

Petitioners’ supplemental petitions. 

DATES: The comment period for the 

notice published on April 13, 2023, at 

88 FR 22523, is extended. Send 

comments on or before September 21, 

2023. 

ADDRESSES: Interested persons are 

invited to submit written data, views, 

and arguments on this petition. 

Comments must refer to the docket and 

notice number cited in the title of this 

notice and may be submitted by any of 

the following methods: 

• Mail: Send comments by mail 

addressed to the U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

• Hand Delivery: Deliver comments 

by hand to the U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. The Docket 

Section is open on weekdays from 10:00 

a.m. to 5:00 p.m., except on Federal 

Holidays. 

• Electronically: Submit comments 

electronically by logging onto the 

Federal Docket Management System 

(FDMS) website at https://

www.regulations.gov/. Follow the online 

instructions for submitting comments. 

• Comments may also be faxed to 

(202) 493–2251. 

Comments must be written in the 

English language, and be no greater than 

15 pages in length, although there is no 

limit to the length of necessary 

attachments to the comments. If 

comments are submitted in hard copy 

form, please ensure that two copies are 

provided. If you wish to receive 

confirmation that comments you have 

submitted by mail were received, please 

enclose a stamped, self-addressed 

postcard with the comments. Note that 

all comments received will be posted 

without change to https://

www.regulations.gov, including any 

personal information provided. 

All comments and supporting 

materials received before the close of 

business on the closing date indicated 

above will be filed in the docket and 

will be considered. All comments and 

supporting materials received after the 

closing date will also be filed and will 

be considered to the fullest extent 

possible. 

When the petitions are granted or 

denied, notice of the decision will also 

be published in the Federal Register 

pursuant to the authority indicated at 

the end of this notice. 

All comments, background 

documentation, and supporting 

materials submitted to the docket may 

be viewed by anyone at the address and 

times given above. The documents may 

also be viewed on the internet at https:// 

www.regulations.gov by following the 

online instructions for accessing the 

dockets. The docket ID number for these 

petitions is shown in the heading of this 

notice. 

DOT’s complete Privacy Act 

Statement is available for review in a 

Federal Register notice published on 

April 11, 2000 (65 FR 19477–78). 

FOR FURTHER INFORMATION CONTACT: 

Manuel Maldonado, General Engineer, 

NHTSA, Office of Vehicle Safety 

Compliance, (202) 366–7235. 

SUPPLEMENTARY INFORMATION: 

I. Overview: The Petitioners 

determined that certain PVC, Nylon, 

and ‘‘Revised Socket’’ Nylon brake hose 

assemblies equipped in certain MY 

2008–2022 Harley-Davidson Touring, 

CVO Touring, Trike, Softail, Revolution 

Max, VRSC, XG750A, and XL Sportster 

motorcycles, and also sold as 

replacement parts, do not fully comply 

with paragraph S5.3 of FMVSS No. 106, 

Brake Hoses (49 CFR 571.106). 

PCA filed its initial noncompliance 

report on July 27, 2022, and amended 

the report on August 25, 2022, October 

18, 2022, October 26, 2022, November 

16, 2022, March 30, 2023, and May 15, 

2023, pursuant to 49 CFR part 573, 

Defect and Noncompliance 

Responsibility and Reports. PCA 

petitioned NHTSA on August 19, 2022, 

and later amended its petition on 

November 10, 2022, December 2, 2022, 

April 21, 2023,1 and May 15, 2023, for 

an exemption from the notification and 

remedy requirements of 49 U.S.C. 

Chapter 301 on the basis that the subject 

noncompliances are inconsequential as 

they relate to motor vehicle safety, 

pursuant to 49 U.S.C. 30118(d) and 

30120(h) and 49 CFR part 556, 

Exemption for Inconsequential Defect or 

Noncompliance. 

Harley-Davidson filed its initial 

noncompliance report on August 9, 

2022, and later amended the report on 

December 6, 2022, February 7, 2023, 

February 8, 2023, March 8, 2023, May 

11, 2023, and June 21, 2023, pursuant to 

49 CFR part 573, Defect and 

Noncompliance Responsibility and 

Reports. Harley-Davidson petitioned 

NHTSA on September 2, 2022, and 

amended its petition on December 29, 

2022, and June 2, 2023, for an 

exemption from the notification and 

remedy requirements of 49 U.S.C. 

Chapter 301 on the basis that this 

noncompliance is inconsequential as it 

relates to motor vehicle safety, pursuant 

to 49 U.S.C. 30118(d) and 30120(h) and 

49 CFR part 556, Exemption for 

Inconsequential Defect or 

Noncompliance. 

Notice of receipt of the Petitioners’ 

prior petitions was published on April 

13, 2023, in the Federal Register (88 FR 

22523). To view the petitions and all 

supporting documents log onto the 

Federal Docket Management System 

(FDMS) website at https://

www.regulations.gov/. Then follow the 

online search instructions to locate 

docket number ‘‘NHTSA–2022–0094.’’ 

This notice of receipt of the 

Petitioners’ supplemental petitions is 


lotter on DSK11XQN23PROD with NOTICES1